COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 15
(By Senator Wooton)
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[Originating in the Committee on the Judiciary;
reported February 16, 1993.]
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A BILL to amend article three, chapter fifty-seven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
ten, relating to privileged communications between duly
licensed psychotherapists and their patients; and providing
that they may not be required to testify in civil cases
about facts obtained in the course of treatment.
Be it enacted by the Legislature of West Virginia:
That article three, chapter fifty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section ten,
to read as follows:
ARTICLE 3. COMPETENCY OF WITNESSES.
§57-3-10. Communications between psychotherapists and patients.
(a) Definitions:
(1) "Psychotherapist" is:
(A) A person authorized to practice medicine in any statewho is engaged in the diagnosis or treatment of a mental or
emotional condition, including alcoholism and other drug
addictions.
(B) A person licensed or certified as a psychologist under
the laws of this state or any state when the certification
requirements or licensure requirements are substantially similar
to the requirements in this state and who is engaged in the
diagnosis or treatment of a mental or emotional condition,
including alcoholism and other drug addictions.
(2) A "patient" is a person who consults or is interviewed
by a psychotherapist for purposes of diagnosis or treatment of a
mental or emotional condition, including alcoholism and other
drug addictions.
(3) "Communication" includes conversations, correspondence,
actions and occurrences relating to diagnosis or treatment,
regardless of the patient's awareness of such conversations,
correspondence, action and occurrences, and any records, tape
recordings, memoranda or notes of the foregoing.
(4) A communication between psychotherapist and patient is
"confidential" when it is not intended to be disclosed to third
persons other than:
(A) Those persons present, including family members, to
further the interest of the patient in the consultation,
examination or interview;
(B) Those persons necessary for the transmission of the
communication; or
(C) Those persons who are participating in the diagnosis and
treatment of the patient under the direction of thepsychotherapist or reasonably believed to be so by the patient.
(b) General rule of privilege. -- In civil proceedings, a
patient has a privilege to refuse to disclose, and to prevent any
other person from disclosing confidential communications,
whenever made, relating to diagnosis or treatment of the
patient's mental or emotional condition between the patient and
psychotherapist or under the supervision of, or in cooperation
with, the psychotherapist in the accomplishment of the objectives
of diagnosis or treatment.
(c) Who may claim the privilege. -- The patient or the
patient's attorney on behalf of the patient; a guardian or
conservator of the patient; a committee, personal representative
of a deceased patient; a psychotherapist on behalf of the
patient.
(d) Exceptions to a claim of privilege. --
(1) Examination by order of court. -- The privilege does not
apply when the court orders an examination of the mental or
emotional condition of a patient, whether a party or witness, to
communications made in the course of the examination pertaining
to the purpose for which the examination is ordered: Provided,
That the privilege does apply to any admission of guilt to the
commission of a crime.
(2) Proceedings for hospitalization. -- The privilege does
not apply to a proceeding for hospitalization brought pursuant to
article five, chapter twenty seven of this code.
(3) Imminent danger. -- The privilege does not apply when a
psychotherapist, in the course of diagnosis or treatment of the
patient, finds that disclosure is necessary to protect thepatient or another against a clear and substantial danger of
imminent injury.
(4) Crime or fraud. -- The privilege does not apply when the
services of the psychotherapist were sought, obtained or used to
enable or aid anyone to commit or plan a crime or fraud, or to
escape detection or apprehension after the commission of a crime
or fraud.
(5) Breach of duty arising out of psychotherapist-patient
relationship. -- The privilege does not apply when a
communications is relevant to an issue of breach, by the
psychotherapist or by the patient, of a duty arising out of the
psychotherapist-patient relationship.
(6) Child abuse and neglect. -- The privilege does not apply
when the psychotherapist is required to report the suspected
abuse or neglect of a child pursuant to article six-a, chapter
forty-nine of this code and does not apply in any action brought
pursuant to article six of said chapter.
(e) The protections provided by the provisions of this
section are in addition to those protections provided in section
one, article three, chapter twenty-seven of this code.
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(NOTE: The purpose of this bill is to provide a statutory
privilege for certain duly licensed physicians and psychologists
whereby the physician or psychologists will not be required to
testify in most civil actions regarding information obtained in
the course of treating a patient for a mental or emotional
condition.)